
j^i?.c3-TJ3ynE3srT 



E. J. ATKINSON. ESQ., 



IN THE CAS I'] OF 



Hon. JOSEPH SEGAR, 



■A 



p-^ 



ARGUMENT. 



Washington City, Aug. 30, 1866. 
Sir: 

I beg leave to submit some considerations in relation to the 
ca e of Hon. Joseph Begar, of Elizabeth City County, Virginia, 
a distinguished and patriotic citizen, who, as you are doubtless 
aware, has been a true and devoted friend of the government, 
and has suffered greatly during the war. The question is as 
to the political status of his district, and the right of loyal in- 
habitants thereof to be recognized as citizens of the United 
States, and as such entitled to the protection of the Constitu- 
tion and Laws. These grave questions have been decided, ad- 
versely, by a subordinate military officer. Mr. Segar has, 
therefore, appealed to the Chief Executive, confidently believ- 
ing that such an appeal,, by even the humblest citizen, will not 
be made to you in vain. 

The facts in the case out of which this question has arisen, 
are as follows : 

On the 24th day of May, 1861, the farm of Mr. Segar, called 
'• Roseland," containing about 500 acres, situate in Elizabeth 
City County, Virginia, immediately adjoining Fortress Mon- 
roe, was taken possession of by Major General Butler, then 
commanding at Fortress Monroe, and together with the build- 
ings thereon and a considerable amount of personal property, 
appropriated to the use of the United States. The purposes for 



which the property was used, and its present condition, are set 
forth hy Mr. Segar as follows : 

" From the day of seizure to the present time, it has been occupied by the United 
''States for hospitals, stables, camp and drill grounds, svork-shops, store houses 
" timber houses, school houses, dwellings for officers and master-workmen and other 
"government employes, quarters for colored freedraen, and for every imaginable 
" military use." 

" The spoliation of the farm amounts to " irreparable injury." Not a building 
" 15 left but the mansion house and kitchen ; not a rail or post remains of near seven 
" miles of fencing ; not wood enough lo build afire or a panel of fence ; deep exca- 
" vations deface the fields and impair their value, in fine, there is wanting no possible 
"mutilation or desolation. 

It appears that a Board of Survey was detailed for the pur- 
pose of taking an inventory of the personal property, &c., as 

follows : 

Head Quarters 
« Department of Yirginia. 

Fort Moxroe. Ya., May 26, 1861. 

[Special Order, No. 2.] 
" A Board of Officers, to consist of Colonel A. Dnrryea, fifth New York Yol- 
" unteers, Lieutenant Colonel J K. Warren, fifth New York Yolunteers, 
"Brevet Major William Hays, Captain second Artillery, will assemble at 
" the camp of the fifth regiment New Yorlv Yolunteers at twelve o'clock 
" meridian to-day, or as soon thereafter as practicable, and make an inven- 
" tory of such property belonging to Mr. Joseph Segar, of Elizabeth City 
" county, Yirginia, as it may be necessary to take for the use of the govern- 
" ment of the United States ; also, of such forage, mules, wagons, and other 
"property as Mr. Segar maybe willing to dispose of."' 

The reasons assigned for the taking of the premises and 

property, were set forth in a letter addressed to Mr. Segar, hy 

General Butler, on the 25th of June, 1S61, as follows : 

" The circumstances under which the occupation of your property near 
" Hampton, called by you " Roseland," occm-red, were these : on the 22d of 
" May, I came to Fortress Monroe to take command of the department. 
" On the next day I had a consultation with Colonel l)e Russy as to the best 
" place for encamping the troops then about to arrive. I was fully deter- 
" mined to encamp them. The site was then determined upon. On the 
"same day I directed my chief of staff to select proper sites for camps 
" within the section indicated, and that the grounds should be taken posses- 
" sion of for that purpose, and that the owners should be notified that it 
" was so taken for a military exigency. I am informed that you, being 
" ascertained to be the owner, were so notified, and I believe this to have 
"been done. For the details of the proceeding I refer you to the letter of 
" Captain Stewart and Major Fay, United States Army, enclosed herewith. 
" I also was informed that there was upon the land and in your store-houses, 
" certain property very useful to my troops, which I caused to be taken, Arc. 

The claim for compensation lor the occupation of the premi- 
ses was presented to the Quartermaster General, who addressed 



a letter to the Secretary of War^ dated March 2 2d, 1866, as 
follows : 

Quartermaster General's Office, 
Washington, D. C, March 24th, ISfiO 
" Honorable EDWIN M. STANTON, Secretary of War : 

" Sir : — I have the honor to submit herewith the papers in the claim of 
" Honorable Joseph Segar, for rent of his farm, called " Roseland," situated 
" in Elizabeth City county, Yirginia, which was taken possession of by the 
" United States, on the 24th of May, 1861, and has been held by the govern- 
" ment with certain changes and releases of parts, until this time. 

" Yirginia was proclaimed as one of the States in insurrection on the 
" 27tli of April, 1861. The portion of Yirginia in which this property ir^ 
" situated continued in rebellion under all subsequent proclamations until 
" the 1st of January, 1863, when Elizabeth City was among districts noted 
" as excepted by the proclamation of that date. This exception was revoked 
"on the 2nd of April, 1863. This district, then has been proclaimed in re- 
"bellion, except for about three months from the 1st day of January to the 
" 2nd day of April, 1863, ever since the estate for which rent is claimed has 
" been occupied by the United States. 

" The claim is one for rent, and is in a rebellious district ; it cannot, thcre- 
'• fore, be entertained under the act of July 4th, 1864. 

" The whole district Avas in insurrection, and though the guns and garri- 
'• son of Fortress Monroe prevented the occupation of the farm by any ac- 
•' tive hostile force, it was in effect taken by military force as completely as 
" A^icksburg. 

" This office cannot allow this claim under the ruling of the Murfrecsboro. 
'" and Yicksburg case^. 

•' Copies of the decisions in these cases are respectfully transmitted here- 
" with for reference. 

"The whole question of the state of rental which would be proper m this 
" case is discussed in the report of the Board of Survey, the report of Brevet 
" Brigadier General J. J. Dana, Chief of the ninth division of this office, and 
'' other papers herein submitted. 

"It is not believed by the Quartermaster General that had this farm not 
" been formally occupied by the United States it would have been possible 
"for the proprietor to realize any income from its cultivation, exposed to 
' the depredations incident to a state of civil war, the presence of large bodies 
" of troops and negro-refugees — fugitives flying from slavery. 

" It has not been shown that neighboring proprietors carried on the cul- 
" tivation of their grounds. The whole neighborhood, for miles, appears to 
" have been deserted. Mr. Segar, who has adhered to the Union cause, has 
" been a sufferer by the war, in common with all other landed proprietors in 
" the lower part of the peninsula. 

" The United States occupied lands in various parts of the theatre of war, 
" at Fortress Monroe, at Newport News, about Yorktown and on the Chick- 
" ahominy. 

" Should rents for any of these lands in a rebellious district be paid by the 
" Executive Departments, and if so, which ? 

" With these remarks the case is respectfully submitted to the Secretary 
" of War." 



It appears that the case was referred to the Chief of the Bu- 
reau of Military Justics, who made a report as follows : 

War Department, 
Bureau of Military Justice, 

April 17, 186G. 

' To the Secretary of War : 
"The papers relating to the claim of Joseph 8egar for compensation for 

• the use of his farm, in Elizabeth City comity, Virginia, occupied by the 
' United States forces, are respectfully returned. 

" The reasons which forbid the adjudication of this demand by the War 

• Department, are set forth at length by the Quartermaster General, and 

• the views of the class of cases to which this claim belongs, are fully ex- 

• pressed in the report of the '' Yicksburg case," a copy of which enclosed 
' by the Quartermaster General, is found with these papers. 

'• Upon one point only is there any apparent difference of opinion between 
' the Bureau and the Quartermaster General, and that may be without im- 

• portance in this particular. It is mentioned, however, with a view to its 

• determination by the Secretary. 

'•The Quartermaster General remarks : ''• Virginia was proclaimed as one 
' of the States in insurrrection on the 27th day of April, 1861. The por- 
' tion of Virginia, in which this property is situated, continued in rebellion 
' under all subsequent proclamations, until January 1st, 1863, when Eliza- 
'beth City was among districts noted as excepted by the proclamations of 

• that date." This exception was revoked on the 2d of April, 1868. This 
' district then has been proclaimed in rebellion except for about three 
'months, or from the 1st of January to the 2d of April, 1863, ever since 

• the estate for which rent is claimed has l.>cen occupied by the United 
' State?."' 

"For reasons which will be stated, this Bureau has taken a different view 
' of the exceptions contained in the proclamation of January 1st, 1863, and 
' has interpreted tlic language of that document as exempting the excepted 
' districts merely from the operation of the emancipation edict, and as not 
' affecting their status in respect to any other matter. The phraseology is 

as follows : " and which excepted parts are for the present left precisely as 
•if this proclamation were not issued." 

*'To ascertain what the previously existing condition of these parts were, 
' recourse is had to the antecedent action of the government. It is found 
' that the proclamations of August 16th, 1861, and July 1st, 1862, both is- 

• sued in pursuance of acts of Congress, both declared the whole State of 
' Virginia save the portion Avest of the Alleghanies to be in insurrection. 
' It will be observed that so far from revoking the announcements contained 
' in these decrees, the proclamation of January 1st expressly contained the 
'excepted localities in precisely the same status Avliich they already held, 
' and only relieved their slave property from the operation of the emanci- 
' pation clauses. 

"Moreover, the (^iiarterniiister (Jeneral seems to have inadvertently fallen 
' into an error in the statement that the proclamation of April 2d 1863, re- 
' voked the exceptions, of the proclamation of .lanuary 1st. The excep- 

• tions revoked were contained in the proclamation of August 16th, 1861, 
' and were in these words : "except the inhabitants of that part of Virginia 
'lying west of the Alleghany mountains, and of such other parts of that 



" State and other States hereinbefore named as might maintain a loyal ad- 
" bes^'on to the Union and the Constitution, or might be from time to time, 
'• occupied and controlled by forces of the United States engaged in the dis- 
" persion of said insurgents." The exceptions, as modified, were left to stand 
" as follows " except the forty-eight counties of Virginia, designated as "West 
" Yirginia, and except, also, the ports of New Orleans, Key West, Port 
*' Koyal, and Beaufort, in North Carolina." See Appendix No. 1 to acts of 
*' 1863-64 

"These diflFerences of view, and the error just mentioned, are repectfuUy 
'* pointed out with particularity, because it is believed that the G-overnment 
'' might find itself embarrassed by having conceded that any of said excepted 
"parts (Elizabeth City county, Virginia, for example) was not in insurrec- 
"tion from January 1st to April 2d, 1863." 

The ^^ views" of the Chief of the Bureau of Military Justice, 
in the ^' Vicksburg case," to which he refers as expressing the 
reasons which forbid the ''adjudication" of Mr. Segar's claim 
'' by the War Department," are set forth in the following ab- 
stract of the opinion of the Judge Advocate General in the case 
of Albert H. Brown, for the rent of a warehouse in Vicksburg, 
as follows : 

" The property for the use of which this claim is made, was occupied by 
"the United States in a captured city, by virtue of the rights of the con- 
" queror under the laws of war. No contract supports the demand. Notwith- 
" standing the payment of rent in some similar cases, by different officers, 
"the paramount right of a captor with respect to such property is not un- 
" derstood to have iDcen formally surrendered by the government, and it is 
" believed that in view of the grave political questions which such action 
" wo aid involve and might compromise, the responsibility of renouncing that 
" right should not be assumed by the Executive branches of administration 
" without the clearest authority conferred by legislation. For such author- 
" ity in this instance, appeal must probably be made to section two of the 
" the act of July 4, 1864, chapter two hundred and forty. But two reasons 
•• exist against deriving it from that enactment. In the first place the use 
" of a building taken possession of in this manner is not considered as fall- 
"ing within the term "Quartermaster's stores," employed in the section 
" cited; and secondly, even granting that this definition is applicable, as this 
" claim originated in the State of Mississippi, and not in a loyal State, al- 
" though the claimant is a loyal citizen of New Jersey, if the construction 
"given to the statute referred to by circular No. 51, War Department Ad- 
"jutant General's Office, November 27, 1865, be adhered to, the demand 
"should not be entertained for reasons therein stated. 

On these grounds of objection the claim was rejected. 

As to whether or not any ^' income" would have been de- 
rived by the owner, had the property not been taken by the 
government, it is not deemed material now to inquire, as that 
fjuestion is entirely behind the objections above noted, which are 



8 

fundamental. Mr. Segar will be very willing to go into that 
investigation when the Department shall signify its readiness 
to do so. 

It is proper to state that, at present, all that is claimed is a 
just and reasonable compensation for the use of the buildings 
and farm, by way of rent^ as well as for such articles of per- 
sonal property usually embraced in purchases for the use of the 
army 5 and which may be clearly shown to have been taken 
and applied to the military service^ irrespective of any claim 
for damages, growing out of the use or occupation as stated. 
Mr. Segar does not wish to complicate his claim for rent, and 
for property actually taken and used, with any claim for con-, 
sequential damages, which he very well understands is not a 
proper charge against any appropriation. That, of course, 
must await legislative action by Congress. 

T. 

It is objected that the State of " Virginia was proclaimed as 
one of the States in insurrection on the 27th of April, 1861. '^ 

There is manifest error in this statement of the Quartermas- 
ter General, and which does not appear to have been observed 
by the Judge Advocate General. The proclamation of the 
Fresideiifc delari ng the inhabitants of the State of Virginia 
(except that part of the State lying west of the Alleghany 
mountains, &g.,) in a state of insurrection was not issued until 
tlie IGth August, 1861 — nearly tliree months after the occupancy 
of the property by the United States. The proclamation of the 
27th of April, 1861, simply declared a "blockade of the ports 
of the States of South Carolina, Georgia, Florida, Alabama, 
Louisiana, Mississippi, Texas, Virginia and North Carolina." 

IL 

The ust! of a building, or farm, is not considered as falling 
within the term " Quartermaster's stores," as used in the sec- 
ond section of the act of July 4th, 1864. 

The Judge Advocate General does not appear to be clear on 



9 

this point in his opinion on the Vicksburg case ; for lie pro- 
ceeds to decide against it on another ground, admitting that the 
^^' definition is applicable." It is respectfully submitted that 
it is not material whether this claim be considered under the 
act of July 4thj 1864, or under the general legislation of Con- 
gress. But the term ^'Quartermaster's stores," as used in the 
act of the 4th of July, 1864^ appears to be comprehensive and 
to include all such items of expenditure as legitimately come 
within the province of the Quartermaster General to furnish' 
for the use of the army. Eeferring to the appropriations made 
by Congress, and the laws and regulations defining the 
powers and duties of the Quartermaster General, we find that 
he provides clothing, camp and garrison equipage, transporta- 
tion by land and water ; horses, mules, wagons ; fuel and 
forage ; barracks and quarters for officers, soldiers and em- 
ployees ; buildings for store houses, hospitals. &c._, &c. For 
each of these objects of expenditure, appropriations are placed 
at his disposal ; and they all appear to be comprehended in tlie 
general designation of ^'Quartermaster's stores." If this be 
not so, how is it to be determined what are and what are not 
Quartermaster's stores ? The act of July 4fch, is silent; it 
simply says : ''all claims of loyal citizens in States not in 
rebellion for Quartermaster's stores actually furnished to the 
army of the United States, and receipted for by the proper 
ofiicer receiving the same, or whicli may liave been taken by 
such officer without giving such receipt, may be submitted." 
The Quartermaster General may erect buildings and the ma- 
terials employed are styled "Quartermaster's stores." Is it not 
then, "sticking in the bark,' to say that compensation for the 
hire of buildings already erected may not be included in the 
same term ? But, as before remarked, it did not require the 
enactment of the law of July 4th, to pay rent for these premi- 
ses. There was a standing appropriation for this special pur- 
pose ; and this claim is a proper charge against that appro- 
priation, 



10 

III . 

" The whole district was in insurrection and though the guns and garri- 
" son of Fortress Monroe prevented the occupation of the farm by any ac- 
" tive hostile force, it was in effect taken by military force as completely as 
" Vicksburg." — Q M. GeneraVs Report. 

When Greneral Butler took possession oi' the preiiiises there 
was no sign of resistance. xTor was there any pretence of dis- 
loyalty on the part of the owner. The Quartermaster Gen- 
eral admits that Mr. Segar was an adherent of the Union cause 
and that he has suffered largely by the war. The reason as- 
signed by General Butler for the taking of the property, was 
a ''military exigency" — that it was necessary for the accom- 
modation and support of the troops under his command. It 
was taken possession of under circumstances precisely like 
property was taken in this city and vicinity ; and as it would 
have been taken- in Pennsylvania, InTcw York, or any other 
State of the Union at the time. It may be that ''the guns 
and garrison of Fortress Monroe prevented the occupation of 
the farm by any active hostile force ;" just as the guns and gar- 
rison comprising the cordon of fortifications with which this 
city was surrounded, prevented its occupation "by any active 
hostile force ;" yet I have never heard that assigned as an ar- 
gtmient why rent should not be paid for property taken for mil- 
itary purposes. During all the war, rents have been paid for 
property taken under similar circumstances in this city and 
District. And the same may be said of other sections of 
the country, which had been, at times, witliin the so-called 
confederate lines. 

The county of Elizabeth City, Virginia, in which this property 
is situate, has never been in actual rebellion. It is an historical 
fact that on and al'tei- the 27th of May, 18G1, to the end of the 
war, the county continued in tlie ((uiet and unresisted pos- 
session of the loyal citizens of the Unitod States. Prior to 
that time, the disloyal and evil disposed portion of the inhabi- 
tants had left ; and no organized body of rebel troops had at 
any time a foothold within its borders, nor was any obstruc- 



11 

tion offered to the execution of tlie laws ot the United States. 
The authority ot the government was respected and maintained 
during the whole war. 

But the Quartermaster G-eneral evidently refers to i\\Q poliii- 
cal status of this part of Virginia, as consequent on the issue 
of the President's proclamation of August IB, 1861, and sub- 
sequent proelamations. 

That proclamation related mainly to trade and intercourse 

between loyal and insurrectionary districts, and was issued in 

pursuance of the act of loth of July, 1861, providing '*for 

the collection of duties and imports, and for other purposes." 

It declared as follows : 

" Now therefore, I, Abraham Liimohi, President of the United States, in 
"pursuance of an act of Congress, approved July 13th, IbGl, do hereby 
" declare that the inhabitants of the said States of Georgia, South Carolina, 
'* Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkan- 
" sas, Mississippi and Florida, except the inhabitants of that i^art of 
" the State of Virginia lying west of the Alleghany mountains, and of 
" such other ^ arts of that State and the other States hereinbefore named as 
"■may maintain a loyal adhesion to the Union and the Constitution, or 
" may be from time to time; occwpied and controlled by forces of the United 
" States engaged in the dispersion of said insurgents, are in a state of in- 
" surrection against the Uni ed States, and that ail commercial intercourse 
" between the same and the inhabitants thereof, with the exceptions afore- 
" said, and the citizens of other States and other parts of the United States 
*' is unlavrful, &c," 

Now, it is true that Elizabeth City county is not excepted 
by name from che operations of the proclamation ; but it is 
respectfully submitted that by the express language of the ex- 
ception above quoted it is as perfectly and completely excepted 
as if it had been named specifically. The language of the 
exception is clear and comprehensive: ^'except the inhabitants^ 
of that f)aTt of the State of Virginia lying west of the Alle- 
ghany mountains, and of such other parts of that State and 
the other States hereinbefore named, as may maintain a loyal 
adhesion to the Union and the Constitution, or may be, from 
time to time occupied and controlled," &c Why was this ex- 
ception made : what was its intention and object ? It was un- 
questionably introduced for a very important purpose. Taken 
in connection with the resolutions of the Senate and House of 



12 

Eepreseatatives, passed but a few days prior to the issue of 
the proclamation, it was an official declaration of the object 
and 'policy of the government in the war then about being 
waged against the armed forces of the insurgents. But fortu- 
nately, we are not left to grope in the dark, or call upon the 
^'Bureau of Military Justice" for an exposition of the legal 
effect of this exception, or when it shall be considered as having 
been worked. That has been judicially determined \ij the 
Supreme Court of the United States, in a case arising near 
New Orleans, Louisiana, after the occupation of that cit}^ by 
the United States forces on the 1st day of May, 1862. The 
question came up in this way : the inhabitants of Louisiana 
were declared by the proclamation of August 16, 1861, as in a 
state of insurrection. The military and naval forces were 
despatched under command of General Butler and Admiral 
Farragut, and on the 1st day of Mbiy, 1862, the city of New 
Orleans was occupied by the United States forces. A few days 
afterwards a vessel belonging to an alien resident in New 
Orleans was captured by the United States ship of war ^^Cal- 
houn," on lake Pontchartrain, taken to Key West, libelled as 
a prize of v\^ar in the district court, but directed to be returned; 
appealed to the Supreme Court of the United States and the 
decision of the court below affirmed. The question involved 
the 'political status of New Orleans at the date of the capture 
of the vessel, and Chief Justice Chase, in delivering the opin- 
ion of the court, said : 

'• The liftb sec iou of the act of July 13, 18G1, providing for the collection of 
"duties and lor other purposes, provided ihat. under certain conditions, the Presi- 
'• deu , bv proclamation, might dec'are the inhabitants of a State, or any section or 
" part thoieof to be in insurrection against the United States. In pursuance of this 
" act, the President on the IGth of August foUowino;, issued a proclamation declaring- 
" that the inha' itaiits of the States of Virginia. >orth Carolina, Tennessee. Arkan- 
" sa^! :ind the other States south of these, except the inhabitants of Virginia west of 
'• the' Alleghanics and of those parts of States maintaining a loyal adhesion to the 
" Union and tlie (Junstitution, or from time to time occupied and controlled by for- 
" CCS of ihe Unitid States, tngagcd in the dispersion of the insurgents Avere in a 
"stMteof insurrection against the United States. 

"This legislation and exicutive a.tion related, indeed, mainly to trade and inlcr- 
" course betweii: the inhabitants of loyal and the inhabitants of insurgent parts of 
" the country ; but by excepting di-tricts occupied and controlled by naioual troops 
''from the general prohibition of trade it indicated the policy of the government 



13 

" not to regard such districts as in actual insurrection, or their inhabitants as subject, 
" in most respects, to treatment as enemies. Military occupation and control, to 
"work this exception, must be actual, that is to say not illusor}^, not imperfect, 
"not transient, but substantial, complete and permanent. Beiuf? such, it draws 
" alter it the full measure of protection to persons and property consistent with a 
"necessary subjection to military government. It does not, indeed, restore peace, 
"or in all respects, former relations ; but it replaces rebel by national rule, and rc- 
" cognizes to some extent the conditions and responsibilities of national citizenship." 
"The regulations of trade made under the act of 1861 were framed in accordance 
" with this policy. As for as possible the people of sucli parts of the insurgent States 
"as cime under national occupation and control, loere treated as if their relations to 
" the national government had never been interrupted.'' 

And so we find that in the emancipation prodamation of 
January 1st, 1863, the county of Elizabeth City with certain 
other counties not named in the prochimation ot August 1(3, 
1861, was exempted from the operacions of said proclamation 
and from the rebellious condition. By comparing the procla- 
mation of January 1st, 1863, with that of the 16th of August, 
1861, .it will be seen that the States and parts of States 
exempted from the operations of the proclamation of the \>X- 
of January, 1863, were precisely such as come within the ex- 
ceptions specified in the proclamation of the 16th of August, 
1861, thus showing, conclusively, that the President intended 
to adhere to and carry out the policy indicated in those excc])- 
tions in good ftiith. Thus, the whole State of Tennessee^ the 
inhabitants whereof had been declared in insurrection by the 
proclamation of August 16th, 1861, was exempted from the 
proclamation of the 1st of January _. 1863 ; so, also, thirteen 
parishes, comprising a good portion of the State of Louisiana, 
including the city of New Orleans, and the additional coun- 
ties of Berkely, Accomac, Northampton, Elizabeth City, York, 
Princess Ann and Norfolk, including the cities of Norfolk and 
Portsmouth in Virginia: said States and parts of States having 
' 'maintained a loyal adhesion to the Union and Constitution," 
or been ^'occupied and controlled by forces of the United States 
engaged in the dispersion of said insurgents ;" and therefore, 
in the language of Chief Justice Chase, were not to be regarded 
^'in actual insurrection, or their inhabitants as subject, in 
most respects, to treatment as enemies ;" but entitled to 'Hhe 



14 

full measure of protection to person and property consistent 
with a necessary subjection to military government." 

It is said, however, by the Quartermaster General, that 
this exception was revoked on the 2nd of April, 1863. This 
the Judge Advocate General disagrees to, or rather, he con- 
troverts the admission of the Quartermaster General that from 
January 1st, 1863, until the 2nd of April, 1863, the county of 
Elizabeth City was to be considered as not in insurrection. 
Here, again, the decision of the Supreme Court is directly in 
point. The proclamation of April 2nd, 1863, is also known 
as of date of March 31st, 1863, being published in the laws 
as of the latter and in the Treasury regulations as of the 
former date. They are identical, however, the one being a 
perfect transcript of the other with the ex(.;eption of dates. 
In the decision of the Supreme Court, before referred to, it is 
spoken of as the proclamation of March 31st, 1863, and the 
Chief Justice, speaking of its effect on this question, said : 

"It is true that the general exception from tlie prohibition of commercial inter- 
" course which has just been mentioned, was cancelled and revoked by the Presi- 
" dent's proclamation of 31st of March, 1863, and, instead of it, a particular excep- 
" tion made of We?t Virginia and of the ports of New Orleans, Key West, Port Royal 
" and Beaufort in North'Carolina. But this revocation merely broudit all parts of 
"the insurgent States under the special licensing power of the President, conferred 
" by the act of July 13th, 1861 . It affected in r,o respedthe general principles of pro- 
" tection to riglds and property under temporary government^ established after the rcstora- 
'■^tion of the national authority.^' 

"The same policy may he inferred from the conduct of the war. "Wherever the 
"national troops have re-established' order under national rnle, the rights of jier- 
" sons and of property have been, in general, respected aiKl enforced. When Flag 
" Officer Farragut, in his first letter to the rebel mayor of New Orleans, demanded 
"the surrender of the city, and promised securitv to persons and pr0|)erty. he ex- 
" pressed the general policy oP the government. So, also, Avhen Major General Bul- 
kier .published his proclamation and repeated the same assurance, and made a di?- 
" tinct pledge to neutrals, he made no declaration which was not fully warranted by 
^'' that policy . Neither the assurance nor the pledge was given as condition of sur- 
" render. Both were the manifestation of a general purpose which seeks the re-cs- 
"tablishment of the national authority, and the ultimate restoration of States and 
" citizens to their rational relations, Avithout any views ofsui)jugation by conquest." 

Now, apply these executive acts and principles, as construed 
by the Supreme Court, to the present case. The inhabitants 
of the county of Elizabeth City, Virginia, stood in the rela- 
tion of loyalty to the government daring tlie wliole war ; and 
they were specially excepted from tlie edict of emancipation of 



15 

Isfc Jainiary, 1863. The people of the district of wliicli it com- 
prises a part elected a member to represent tliem in the Uni- 
tctl States Congress. Hon. Joseph Scgar, the present claimant, 
was cliosen and represented the district in the thirty-seventh 
Congress, until the expiration of his term, March 3d, 1883. 
The people of the county have paid taxes to the United States; 
they have been represented in Congress ; they have '^main- 
tained a loyal adhesion to the Union and the Constitution ;" 
with what show of reason or justice, then, shall they be 
told by the Qnartormaster General, or the Chief of the ^'Bu- 
reau of Military Justice," that they are under the ban as in- 
surgents, having no rights of property that the government is 
bound to respect ; and not entitled to the benefit of the consti- 
tutional provision that private property shall not be '-^tahenfor 
picblic use ivitliout just coinjjensation." 

But, again : By the act approved July 4th, 1864, Congress 
made provision for the payment of certain claims of ^^ loyal 
citizens in States not in rebellion ' ' Under this act, on the 29th 
August, 1864, Eules and Eegulations were promulgated by the 
Quartermaster General, ''approved" by the Secretary of War, 
of v/hich part 1st of section three is as follows : 

" 1st. That the claimant is a loyal citizen of a State not in rebellioa. Claims of 
"citizens of the foilowino; States and parts of States, declared bj the President of 
"the United States, by his proclamation of the Ist day of January, 1863 to be in 
"rebellion will not be considered, viz: Arkansas, Texas, Lousiaaa, (except the par- 
' ishes of St. Bernard, Plaquemines, J^ff^rson, St. John. St. Charles, St. James, 
" Ascention, Assumption, Terre Bonne, Lafourche, St. Marj^ St. Martin aud Or- 
" leans, including the city of New Orleans,) Mississippi, AUibama, Florida, Geor- 
"gia, North Carolina and Virginia, (except the forty eight couaties designated as 
" West Virginia, and also the counties of Berkeley, Accomac, Northampton, ELiza- 
'■'■beth City^ York, Princess Anne and Norfolk, including the cities of Norfolk and 
"Portsmouth?" 

Here wo find an express recognition, with the approval of 
the Secretary of War, of claims of loyal citizens of the county 
of Elizabeth City, Virginia, as entitled to the benefit of the act 
of July 4, 1864. This construction of the act was promulgated 
by the Quartermaster General (General Orders, No. 35) as 
'^ approved^'' by the Secretary of War\ and, therefore, has the 



16 

force and effect of law, and is to be regarded as the act of the 
President himseli.— Wilcox vs. Jaclcson, 13 Peters, 498. 

And to place the matter beyond the possibility of doubt or 
cavil, an Executive order of the late President is produced, di- 
recting that the county of Elizabeth City, Virginia, shall be 
recognized with the other counties composing the congressional 
district, as a loyal district, viz: 

Executive Mansion, 
Washington, November 4, 1862. 
Commissioner of Iniernal Revenue : 

Sib : "It was b}^ some oversight that the Eastern shore counties of Virginia, and 
"some other counties of Hon. Mr. Segar's district, were not classed as loyal in the 
"proclamation of September. I intend to set this right the first convenieat oppor- 
"'tunity. Meanwhile, please consult with Mr. Scgar, and act with his district as with 

" A LOYAL DISTRICT." 

Yours trulv, 

A. LINCOLN. 

And he did set it right in his next proclamation, viz: Janu- 
ary 2, 1863, as we have seen. 

But it is said that ''the responsibility of renouncing that 
right" (the right of the conqueror) ^'should not be assumed 
by the Executive branches of the administration without the 
clearest authority conferred by Igislation," in view of ^''the 
grave political questions which such action would involve 
and might compromise." 

What these '-'grave political questions" are which rise before 
tlie vision of the Judge Advocate General and cause him to 
cling with such tenacity to the barbarous code of the conqueror 
we are left to conjecture. He does not state them. Neverthe- 
less, we are bound to presume that they relate to the political 
status of the States, and parts of States the inhabitants 
wdiereof were declared to be in insurrection. It is respectfully 
submitted, however, that such questions do not lie within the 
domain of military discretion, nor of the ''Bureau of Military 
Justice." It is well settled that their decision pertains^ ex- 
clusively, to the political department of the government. 

The question of the status of the state of Virginia was con- 
sidered in both Houses of Congress during the 37th session, 



17 

after the re hellion had broken out. It came up on the aplica- 
tion of Messrs, Carlisle and Willey for admission as Senators, 
at the special session in July, 1861. Messrs. Mason and Hunter 
had withdrawn, a State Convention had passed an ordinance 
of secession, and the battle of Bull Run had been fought on the 
soil of Virginia. That portion of the people remaining true 
to their allegiance to the United States, had elected^ on the 23d 
of May, 1861, members of the legislature which, on the 9th of 
July following, electe.l Messrs. Carlisle and Willey to fill the 
vacancies, and represent the State of Virginia. The status of 
the State, and her loyal citizens, was fully discussed. Mr. 
Johnson, of Tennessee, in the course of his remarks, said: 

r>' n -\srw\ \\-^Q United States stand by and see a loyal portion of a State, maintaining 
" all the authorities, prevented from having- a fair and equal participation in the gov- 
'•ernment, and to that extent favor and tolerate and sanction open rebellion, and 
" encourage insurrection in another portion of the same State ? 1 say it is the duty 
"of the Senate, and the duty of the House of Representatives to stand by these 
''loyal men, to stand by Virginia as loni;: as she is loyal to the Constitution, to 
"stand by that sentiment which is trying to sustain and will in the end sustain the 
"supremacy of the Constitution and the laws." 

Mr. CoUamer said : 

" This is in the nature of a judicial proceeding ; we are now judging of the qnalifi- 
'' cations of our members. It is not at all an uncommon thing in our highest tri- 
" bunals. that points arise in the investigation of cases where the court is constrained 
"to say "that is a political question ; with that the courts have nothing to do.'' 
" For instance : whether a foreign government recently commenced has become an 
" independent people, whether in court it is to be treated and consideied as a na- 
" tion, is not a point on which the court can decide. That is a political question ; 
"and if the Executive Head of the government has received ministers from that 
" power, recognized it as a power on earth, the courts cannot go into the question 
" whether he did it right or did it wrong. It is a matter of political action and the 
'' political power is what settles it, and we cannot examine into it an}'- more. In an- 
"alogy to that, in this judicial proceeding, must we not be governed by the fact 
^' that the government of Virginia that has executed these papers and sent them to 
" us, is recognized hy our Executive ? They have called on him for militia, and have 
^'received militia from him. He recognises them as the government of Virginia. 
^' It is a political question ; it is settled. There is no occasion for our inquiring fur- 
*'ther into that." 

On these facts and principles, the Senators were admitted 
by a nearly unanimous vote, viz: yeas 35, nays 5. 

Congressional Globe, July 13th, 1861, page 109. 

And in the House of Kepresentatives, Mr. Segar and other 
representatives from Virginia were admitted to and held their 
^eats \intil the close of the Congress, March 3, 1863. 



18 

In support of the correctioa of this action numerous authori- 
ties might be cited. 

In the case of Martin vs. Mott, 12, Wlieaton, 19, Mr, Jus- 
tice Story, in delivering the opinion of the court, said: 

" The law does not provide for any appeal from the jado'meat of the President, or 
'' for any right in subordinate officers to review his decision and in effect defeat it. 
" Whenever a statute gives a 'discretionary power to any person, to be exercised by 
" him upon his own opinion of certain facts, it is a sound rule of construction, that 
" the statute constitutes bini the sole and exclusive judge of the existence of those 
'• facts. And, in the present case, we are all of opinion that such is the true con- 
"struction of the act of 1795. It is no answer th;it such a power may be a,bused, 
■' for there is no power which is not susceptible of abuse. ' The remedy for this, as 
'• well as for all other official misconduct, if it should occur, is to be found in the 
"Constitution itself. In a free government, the danger must be remote since in 
'•addition to the high quaUties which the Executive must be prenimed to possess 
"of ])ublic virtue and honest devotion to the public interests, tha frequency of elec- 
" lions and the Avatchfulness of the Representatives of the nation, carry with them 
'^all the checks which can be useful to guard agaiust usurpation or wanton 
'tyranny." 

And in Luther vs. Bordeu, 7, Howard, 1, the same doctriue 
is affirmed: 

•• In the case of foreign nations, the government acknowledged by the President 
" is always recognized in the courts of justice. And this principle has been applied 
" by the act of Congress to the sovereign S*ates of the Union." 

Chief Justice Taney, Id. M. 

ISce, also : 

Rose vs Himely, 4 Cranch, 241 ; Gelston vs Hoyt, 3 Wliea- 
ton, 246 ; Kennett et. al. vs Chambers, 14 Howard, 33. 

And in a case during the war, in the United States District 
Court, Eastern District of Missouri, Treat, J., said : 

"The condition of peace or war, public or civil, in a legal sense, must be deter- 
" mined by the political department, not the judiciil. The act of 1795 and the 
''act of July loth, 18G1, vest the President with the power to determine when in- 
"surrection exists, and to what extent it exists. * * * Inshort, the s/a^^^s of 
" theconntry as to peace or war is legally determined by the political and not the 
"judicial department. The same power which determines the existence of war or 
" insurrection, must also decide when hostilities have ceased — that is, when peace 
''is restored."— ^?;ier, Law Register vol. 2, N. S., 430. 

Til US we have seen that the responsibility of deciding 
these ^' grave political questions," has hten assumed, and 
that they have been decided by the only department of the 
government authorized to make such decision. The county of 
Elizabeth City, Virginia, by virtue of the President's procla- 
mations, the decisions of the Supreme Court, and the legisla- 



19 

tive action of Congress, mnst be recognized as a ^Hoyal dis- 
trict'' during the whole war. 

lY. 

" The property for the use of which this claim is made, was occupied by the Uni- 
"ted StatPS in a captured city, by virtue of the rights of the conqueror under the 
" laws of war. No contract supports the demand. Notwithstanding the i)ayment 
" of rent in some similar cases, by difierent officers, the paramount right of a cap- 
" tor with respect to such property is not understood to have been formally surren- 
"dered by the government." 

(Abstract of Judge Advocate General Holt's opinion in '' the 
Vicksburg case/' to which ^^ class of cases" he assigns this 
claim.) 

It is but just to say that here are enunciated, clearly and 
boldly, the principles which govern the Military Bureaus in 
their action on claims of citizens residing in what are termed 
^^ disloyal districts," and ^''States in rebellion." It matters 
not that the claimant from whom ]3i'operty or supplies have 
been tahen, is shown by the most indubitable testimony to 
have adhered to the government and the flag under the most 
trying circumstances ; though he may have served in our ar- 
mies, fought our battles, shed his blood in defence of the Union 
and tlie Constitution, the inexorable response is '' you were a 
resident of a disloyal district, of a State in insurrection — we 
know you not." 

'^No contract supports the demand," says the Chief of the 
Bureauof Military Justice. Behold the Constitution, for the 
preservation of which half a million of men have laid down 
their lives, and untold millions of treasure have been expended: 
Article YI: ^^Nor shall private property be taken for public 
use without just compensation." 

•'Where the owner has done nothing to forfeit his rights, every public officer is 
"bound to respect them, whether he finds the property in a foreign or hostile 
" country, or in Ijisown." 

•' There are, without doubt, occasions in which property may lawfully be taken 
"possession of or destroyed to i)revent it from falling; inio the hands of the public, 
''enemy, and also where a military officer, charged with a particular duty, may 
"impress private property into the public service or lake it for public use. tlnques- 
" tionably, in such cases, the government is bound to make full compensation to the 
" owner: but the officer is not a trespasser." — Mitchell vs. Harmony, 13 TIoivard\\5, 



20 

^ ^ The rights of tJte Co'SQiJETxO-R lender the LA^YS OE war!" It 
is not enougli that Congress has enacted a law providing 
for the settlement of claims of loyal citizens of States not in 
rebellion^ at the time of its passage; that the President in his 
Proclamations declared that such ^^ parts of States" in insur- 
rection as might maintain "a loyal adhesion to the Union and 
the Constitution^ or might be from time to time occupied and 
controlled by the forces of the United States engaged in the dis- 
persion of the insurgents/' were excepted from the rebellious 
condition ; that the Supreme Court has decided that this ex- 
ception is worked whenever such occupation and control by the 
United States forces is '^substantial, complete and perma- 
nent." It matters not that the President and Congress have 
solemnly declared to the world that the war was waged solely 
for the preservation of the Constitution and Union, and the 
restoration of the lawful authority of the government ; that 
the Supreme Court has decided that permanent occupation and 
control by the United States troops ''draws after it the full 
measure of protection to persons and property ;" that such an 
"assurance only expressed the general policy of the govern- 
ment," which seeks "the establishment of the national au- 
thority, and the ultimate restoration of States and citizens to 
their national relations, under better forms and firmer guaran- 
tees, and loithout any vieius of suhjvgation hy conquest." 

The rights of the conqueror, says the Judge xldvocate Gen- 
eral, are "not understood to have been formally surrendered 
by the government !" Let lis recur to liistory. 

In his first proclamation, April 15, 18G1, declaring that the 
execution of the laws was obstructed in certain States, and 
calling forth 75,000 militia, the President stated : 

" I deem it proper to say that the first service assigned to tlie forces hereby called 
" forth 'vvill probably be to repossess the forts, places ar.d proj)£rty Avhich have been 
'•seized from the Union ; and in every event the utmost care will be observed, 
"consistently with tlie objects aforesaid, to avoid any devastation, any destruction 
'^ o{ or inter ferencb zvith property, or any disUnhsiuce of peaceful ciiizens in any 
"part op the country." 



21 

In ills message to Congress, July 4tli, 1861, after reciting 
the circumstances connected with the act of secession, so called, 
in Virginia, President Lincoln said : 

"The people of Virginia have thus allowed this giant insurrection to make its 
" nest within their borders ; and this government has no choice but to deal with it 
^^ where it finds it. And it has the less regret, as the lo.yal citizens have, in due 
'' form, claimed its protection. Those Zo?/aZ citizens this govtrnme7it is hound to re- 
'■'■cognize and 'protect, as being Virginia." 

And further : 

" Lest there be some uneasiness in the minds of candid men as to what is to be the 
'■'■ course of the government toward the southern States after the rebellion shall have 
" been suppressed, the Executive deems it proper to say, it wMU be his purpose then, 
'' as ever, to be guided by the Constitution and the laws; and that he probably will 
''have no different understanding of the powers and duties of the Federal govern 
t' ment relatively to the rights of the States and the people, under the Constitution, 
"fthan that expressed in the inaugural address." He desires to preserve the govern- 
'• ment, that it may be administered for all, as it was administered by the men who 
"made it. Loyal citizens everywhere, have the right to claim this of their govern- 
"ment; and the government has no right to withhold or neglect it. It is not per- 
" ceived that, in giving it, there is any coercion, any concjuest, or any subjugation, 
"in any just secse of these terms." * "•'■ •■• * "He simply hopes 
" that your views and your action may so accord with his, as to assure all faithful 
"citizens who have been disturbed of their rights, of a certain and speedy restoration 
"to them, under the Constitution and the l\w3. And having thus chosen our course 
''without guile and with pure purpose, let us i-enew our trust in God, and go for- 
" ward without fear and with manly hearts." 

With this solemn invocation before them, the House of Rep- 
resentatives passed the memorable resolution offered by Mr. 
Crittenden, by a vote of yeas 121, naijs 2 ; as follows : 

" Resolved by the House of Representatives of the Congress of the United States, that 
" the present deplorable civil war has been forced upon the country by the disunion- 
" ists of the southern States, now in revolt against the constitutional government., 
"and in arms around the capital ; that in this national emergency, Congress, ban- 
"ishing all feelings of mere passion or resentment, will recollect only its duty to the 
" whole country ; that this war is not waged upon our part in an}^ spirit of oppres- 
"sion, nor for any purpose of conquest or subjugation, nor purpose of overthrowing 
"or interfering with the rights or established institutions of those States, hut to 
" defend and maintain the supremacy of the Constitution, and to preserve the Union with 
"all the dignity, equality and rights of the several States unimpaired ; and that as 
"soon as these objects are accomplished the war ought to cease." 

Congressional Globe, July 22, 1861, page 222. 

And three days afterwards the same resolution, substantially, 
was presented by Mr. Johnson, of Tennessee, and passed the 
United States Senate, yeas 30, nays 5. 

Congressional Glohe, July 25, 1861, page 265. 

In his message to Congress in December, 1861, President Lin- 
coln said : 

'*In considering the policy to be adopted for suppressing the insurrection, I have 



22 

''been anxious and careful that the inevitable conflict for this purpose shall not de- 
" generate into a violent and remorseless revolutionary struggle. I have, therefore, 
"in every case thought it proper to keep the integrity of the Union prominent as the 
" primary object on our part, leaving all questions which are not of vital military 
"importance to the more deliberate action of the Legislature." 

Again : 

"We have attempted no propagandisra and acknowledged no revolution." '•■ 
• ' *- ' ' FelloAv citizens we cannot escape history. We of this Congress and this 
" administration will be remembered in spite of ourselves. No personal significance 
" or insignificance can spare one or another of us. The fiery trial through which we 
•' pass will light us down, in honor or dishonor, to the latest generation. We say 
" we a.vQjor the Union. The world will not forget that we say this." 

And, again, in the proclamation of September 22nd, 1862 : 

" I, Abraham Lincoln, President of the United Stales of Am'^rica, and Comman- 
" der-in-Chief of the Army and Navy thereof, do hereby proclaim and declare, that 
"hereafter as heretofore, 'the war will be prosecuted for the object of practically 
" re.'^toring the Constitutional relation heiioeen the United States and each of the States 
" and the'jjeojjle thereof, in which States that relation is or may be suspended or dis- 
" turbed.'' 

For these objects alone, the Legislative, Executive and Ju- 
dicial departments of the government have solemnly declared 
that the war was waged. An hundred treaties, sanctioned by 
innumerable oaths, could not mahe the obligation more sacred 
aud binding before the civilized world. 

There is no such thing in this country as confiscation without 
authority of law. No such right belongs to the Exec utive un- 
der the war power. It is in the legislature, solely. 

" It is urged th.at in executing the laws of war, the executive may seize and iho 
" courts condemn all property which, according to the modern law of nations, is 
" subject to confiscation, although it might require an act of the legislature to justify 
"the condemnation of that property which, according to modern usage, ought 
" not to 1)6 confiscated." 

'^This argument must assume for its basis the position that modern usage con- 
" stitutcs a rule which acts directly upou the thing itself by its own force, and not 
" through the sovereign power. This position is not allowed. This usage is a 
" guide'\vhich the sovereign follows or abandons at his will. The rule, like olher 
'• precepts of morality, of humanity, and even of wisdom, is addressed to the judg- 
" mcnt of tlie sovereign; and although it cnnnot be disregarded by him witlioiit 
' ' obloquy, yet it may be disregarded.' ' 

" The rule is, in its nature, flexible. It is subject to infinite modifications. It is 
" not an immutable law, but depends on political considerations which may con- 
" tiuually vary. 

" Commercial nations, in the situation of the United States, have always a con- 
" siderable quantity of proper tj^ in the possession of their neighbors. When Avar 
" l)reaks out, the question, what shall be done with enemy property in our country, 
" is a question rather of policy than of law. The rule which we apply to the prop- 
" crty of our euem^- will be api)lied by him to the pro[)erty of our citizens. Like 
"all other questions of policy, it is proper for the consideration of a department 
" which can modify it at will ; not for the consideration of a department which can 



" pursue only the law as it is written. It is proper for the consideration of the leg 
"islature, not of the Executive or Judiciary."— i?/-OM;w 1-5. ^Ae United States. 8 Cranci 



110. 



It is well settled that there is no common law of forfeitures, 
or confiscations : 

The United States vs. Hunter ik; Goodwin, 7, Cranch, 32.— 
State of Pennsylvania vs. Wheeling Bridge company, 13 How. 
ard, 519. 

Congress has legislated so far as in their opinion they were 
authorized by the Constitution or good policy. In all this 
legislation, however, the rights of loyal citizens are saved. For- 
feitures and confiscations are only authorized of the property 
of persons '^engaged in armed rebellion against the govern- 
ment of the United States, or aiding or abetting such rebel- 
lion ;" and to secure condemnation proceedings are required to 
be instituted, and an adjudication had in a United States court. 

The act of Congress^ '^to confiscate property used for insur-. 
rectionary purposes," approved August 6, 1861, (stat. vol. 12, 
[)age319) declares all property employed in aid of the rebel- 
lion ivitli co'nsent of the owners, to be lawful subject of prize 
and capture wherever founil. The act of July 12th, 1862, ''to 
suppress insurrection, to punisli treason and rebellion, to seize 
and confiscate the property of rebels^ and for other purposes," 
(stat. vol. 12, page 591) provided that the property of persons 
^^ engaged in armed rebellion against the government of the 
United States, or aiding or abetting such rebellion/' and who 
should not return to allegiance after the President's warn 
ing, should be seized and confiscated, &c. And tlie act of 
March 12th^ 1863, providing for. the collection of abandoned 
property, &c., (stat. vol. 12, page 820) comprise the legisla- 
tion of Congress on the subject. In all this there is no shadovv^ 
of authority for seizure or condemnation of the property, of 
loyal citizens. Alluding to this legislation, in the case of 
Mrs. Alexander's cotton, Chief Justice Chase, in delivering 
the opinion of the oourt, said : 



24 

''In this war, by this liberal and benificent legislation, a distinction is made be- 
"tween those whom the rule of internafional law classes as enemies. All who hare 
•' in fact maintained a loyal adhesion to the Union, a.re protected in their rights to cap- 
•' tared as well as abandoned property." 

" It seems that in further pursuance of the same views, by an act of the next ses- 
•'sion, Coneress abolished maritime prize on inland waters, and required captured 
" vessels and goods on board, as well as all other captured property, to be turned 
"over to the Treasury agents, or to the proper outcers of the courts. This act 
" became a law a few weeks after the capture now tinder consideration, and does not 
"apply to it. It is cited only in illustration of the general policy of legislation, to 
" mitigate as for as practicable, the hardships of the rules of war, and preserve for 
"loyal owners, obliged by circumstances to remain in rebel States, all property, or 
"its proceeds to which they have just claim, and which may in any way come to 
"the possession of the government or its officers." 2, Vv^allace^ 422. 

Surely it was no oiience to reside and possess property in the 
State of Virginia, at the breaking out of tlie rebellion. Nor 
was it any offence to remain there even subsequently. On the 
contrary, loyal citizens were encouraged to remain, under prom- 
ise of protection, as we have seen, by the Chief Executive, who 
declared that all such '' loyal citizens the government is bound 
to recognize and protect as being Viiginia.'' When the war 
began, but few persons, comparatively, could have abandoned 
their property and homes, carrying with them their families 
to other States, without means of supporting them. Hence 
they were compelled to remain — many, no doubt, against their 
is^ill and as a matter of positive necessity. Now, such persons 
having neither aided nor abetted the rebellion, have done no 
wrong. They need no pardon, and are subject to no punish- 
ment. There is no law of Congress which deprives them of 
any of their rights of property ; not even an Executive edict, 
save the emancipation proclamation, since ratified by constitu- 
tional amendment. They stand, therefore, on the restoration 
of the authority of the government, entitled to every civil and 
political right that belongs to citizens of the United States, in 
any of the States. 

But we arc referred to the authorities on international law, 
in^upport of this claim for the United States of the ^^ rights of 
the Conqueror under the laws of war." Those who claim for 
the government all these rights, as flowing from the laws of 
\var, and find their authority in the writings of publicists on 



25 

mternational law, must admit the validity of the acts of seces- 
sion, aad, in effect, recognize the Southern Confederacy. 

But modern international law sanctions no such claim of 
'^paramount right of a captor/' as set up by the Judge Advo- 
cate General, against the property of peaceable non-combatants. 
On this subject, Mr. Wheaton, says: 

'• Private property on land is also exempt from confiscation, with the exception 
" of such as may become booty in special cases, when taken from enemies in the field 
" or in besieged towns, and of military contributions levied upon the inhabitants of 
" the hostile territory. This exemption extends even t-o the case of an absolute and 
" unqualified conquest of the enemy's country. In ancient times both the movable 
" and immovable property of the vanquished passed to the conqueror. Such was 
" the Roman law of war ; often asserted with unrelenting severity ; and such was the 
"fate of the Roman provinces, subdued by northern barbarians, on the decline and 
"fall of the western empire. The last example in Europe of such conduct was that 
"of England by William of Normandy. Since that period, among the civilized 
" nations of Christendom, conquest, even when confirmed by a t-oaty of peace, has 
"been followed by no general or partial transmutation of landed property. The 
"property belonging to the government of the vanquished nation passes to the vic- 
" torious Stat?, which also takes the place of the former sovereign, in respect to the 
" eminent domain. In other respects, private rights are unaffected by conquest." 

Chancellor Kent also enunciates the same doctrine in still 
more forcible language : 

"There is no limitation to the career of violence and deslructiun, if we follow the 
" earlier writers of this subject, who]have paid too much deference to the violent max- 
" iras and practices of the ancients, "and the usages of the Gothic ages. They have 
"considered a state of war as a dissolution of all moral tics, and a license for every 
"kind of disorder and intemperate fierceness. An enemy Avas regarded as a crirai- 
" nal and an outlaw, who had forfeited his rights, and whose life, liberty, and prop- 
" crt3^, lay at the mercy of the conqueror. Everything done against an enemy was 
"held to be lawful. lie might be desti-oyed, though unarmed and defenceless. 
" Fraud might be employed as well as Ibrcc, and force without any regard to the 
" means. But those barbarous rights of war have ])oeu questioned^and checked, in 
' ' the progress of civilization. Public opinion, as it becomes enlightened and refined, 
" condemns all cruelty, and all wanton destruction of life and property, as equally 
"useless and injurious; and it controls the violence of war by the energy and sever- 
" ity of its reproaches." 

And referring to the marked difference in the rights of war 
carried on by land and sea, he says : 

" But there are great limitations imposed upon the operations of war by land, 
"though. depredations upon private property, and despoiling and plundering the 
"enemy's territory, are still too prevalent, especially when the war is assist'^d by 
" irregulars. Such conduct has been condemned in all ages by the wise and virtw- 
'• ous,°and it is usually severely punished by those commanders of disciplined troop.-^ 
"who have studied war as a science, and are animated by a sense of duty or th-j 
"love of fame. We may infer the opinion of Xenophon on this subject (and he was 
'• a,- warrior as well as a philosopher,) when he states, in the Cyropcedia, that Cyrus 
"of Persia gave orders to his army, when marching upon the enemy's borders, not 
" to disturb the cultivators of the soil; and there have been such ordinances in 
«' jnodern times for the protection of innocent andpacific pursuits. Valtel condemn;; 



26 

''' very sti-ongly the spoliation of a country without palpable necessity : and h3 speaks 
"with a just indignation of the burning of the Palatinate by Turenne, under the 
"cruel instructions of Louvois. the war minister of Louis XIV. The general usage now 
'^ is. not to touch private property upon land^ toiUiout mxJdng compensation, unless in 
"special cases, dictated by the necessary operations of war, or when captured iu 
" places carried by stonn, and which repelled all the overtures for a capitulation.'" — 
'- Kenfs Commentaries^ Vol. 1, page 88, et seq. 

And in a note, it is added : 

" When a Russian army, under the command of Count Diebitsch, had penetrated 
" through the passes of the Balkin to tbe plains of Romelia, in the summer of 1829, 
"the Russian commander gave a bright example of the mitigated rules of modern 
" warfare, for he' assured the Musselmen that they should be entirely safe in their per- 
" sons and property, and in the exercise of their religion ; and that the Musselmen 
"authorities in the cities, towns and villages might continue in the exercise of their 
"civil administration for the protection of person and property. The inhabitants were 
" required to give up their arms, as a deposit, to be restored on the return of peace, 
" and in every other respect they were to enjoy their property and pacific pursuits as 
" formerly. This protection and full security to the persons and property of the 
"peaceable inhabitants of conquered towns and provinces, are according to the 
"doctrine and declared practice of modern civilized nations." — Dodsleif s Ann. 
''Reg., nY2, page 37. 

Shall history record the fact that American commanders were 
more ignorant of, or less willing to be governed by the mitigated 
rales of modern warfare, in a contest with enemies of our own 
race and kindred, than a Russian General in prosecuting a war 
against uncivilized, unchristianized, Turks ? 

In our system of government, the suppression of an insur- 
rection, by military force, is specially provided for ; it is, 
strictly, a right authorized by the organic law. In performing 
this duty to the whole people, and the States, the relations of 
peaceful and law-abiding citizens toward the general govern- 
ment, are not changed by the fact of accidental residence at the 
time within the limits of an infected or disloyal district. The 
question of loyalty or disloyalty is to be determined by actual 
overt act of the individual citizens. The innocent and the guilty 
cannot be thrown into one mass, and treated as rebels, public 
enemies, and the laws of war invoked to sanction indiscrimi- 
nate cunfiscations, forfeitures and punishments. Such a doc- 
trine is ucturiy at variance with the whole theory of our gov- 
ernment. It deprives our citizens of their dearest constitutional 
rights, and places them all, alike, at the mercy of a military 
despotism, in times of civil commotion and danger. The gen- 



27 

ius of American liberty holds such doctrines in utter abhorrence. 
The claim for the exercise of such extreme rights, under the 
laws of war, is discussed hy Justice Woodbury, in a manner 
that commends itself to the approval ot'every enlightened, hu- 
mane, and patriotic mind. He said : 

" Under the worst insurrections, and even wars, in our history, so strong a meas- 
" ure as this is believed never to have been ventured on belore by the general gov- 
•' ernraent, and much less by any one of the States, as within their constitutional 
"capacity, either in peace, insurrection, or war. And if it is to be tolerated, and 
''the more especially in civil feuds like this, it will open the door in future domestic 
" dissensions here to a series of butchery, rapine, confiscation, plunder, conflagra- 
" tion, and cruelty, ur paralleled in the worst contests in history between mere'dy- 
" nasties for supreme power, it would go in practice to render the whole country — 
" Vvhat Bolivar at one time seamed to consider his — a camp, and the adm nistration 
'' of the government a campaign." 

" It is to be hoped we have some national ambition and pride, under our boasted 
" dominion of law and order, to preserve them by law, by enlightened and constitu- 
" tional law, and the moderation of superior intelligence and civilization, rather than 
"by appeals to any of the semi-barbarous measures of darker ages, and the unre- 
" lenting lawless persecutions of opponents in civil strife which characterized and 
" disgraced those ages." 

"Again, when belligerent measures do become authorised by extreme resistance, 
"and a legitimate state of war exists, and civil authority is prostrate, yet war meas- 
" ures must be kept within certain restraints in all civilized communities-" 

" The common laws of war, those maxims of httmanity, moderation and honor," 
•' which should characterize other wars, Vattel says {B. 3, ch. 8, Sec. 284 and 285) 
" ought to be observed by both parties in every civil war." Under modern and 
" christian civilization, you cannot needlessly arrest or make war on husbandmen or 
" mechanic?, or women and children. (Vattel, J3. o, ch. 8, sec. 148.) The. rights' 
" of war are against enemies, open and armed enemies, while enemies and during 
" war, but no longer. And the force used then is not to exceed the exigency — not 
" wantonly to injure private property, nor disturb private dwellings and their jieace- 
" ful inmates." T Howard, 85. 

There is ample authority for the suppression of insurrection 
in the constitution. And when the insurrection has been sup- 
pressed, the restoration of the constitution and laws is virtually 
effected. By the suppression of the insurrection the govern- 
ment of the United States does not acquire a new title, as con- 
queror ; but simply resumes its authority, as of right, which 
had been suspended or in abeyance. It is impossible for it to 
make conquest of a ijart of itself. 

Such was the universal sentiment of the country, until a very 
recent period. And the practice of the Department was fully 
in accordance therewith. 

G-eneral Order, No. 35, was adhered to for more than a 
year, and while the rebsllion was still in actual existence. 



28 

Under it claims in all the excepted districts were considered, 
and such as were found allowable under the law and properly 
established were paid. Afterwards, however, when peace had 
come, when for months there had not been one armed rebel in 
the field, a new light dawned and a new dispensation followed. 
It was suddenly discovered that these excepted districts were 
and had been all the while in rebellion, and that the '' rights of 
the conqueror under the laws of war had not been formally 
surrendered."' Hence, followed ^^ Circular No. 51," from the 
Adjutant Grenerars office, War Department, November 27,1865, 
promulgating the opinion of the Chief of the Bureau of Mili- 
tary Justice upon the 2d and Bd sections of Act of 4th July, as 
follows : 

" How far claims conuected wiili the suppression of the rebellion arising m disloyal 
'•States, then at open war with the government, will be allowed, is a question so 
'• complicated with political and other considerations proper for the determination of 
•■* Congress, that it is believed the executive administration should not assume to act 
•• upon such claims without the clearest authority conferred bj law. It is not sup- 
" posed to have been the intention of Congress to bestow such authority by the act 
" referred to this Bureau for construction."' 

And thenceforward the exceptions contained in said '• G-en- 
eral order. No. 35," have been disregarded and practically re- 
voked. 

It thus appears that the Chief of the ''Bureau of Mili- 
tary Justice" espouses the theory which stands opposed to 
the policy of the Executive, declared by the late President as 
to the object and conduct of the war, and now adhered to by 
the present Executive in the administration of the govern- 
ment and restoration of the Union. The proclaimed policy 
of the political department of the government ; the Executive 
Head and Commander-in-Chief of the Army and Navy; in 
perfect accordance with the legislative acts, as expounded by 
the highest judicial tribunal of the country, is thus contemned 
and set at naught. 

This policy, so wise and just, adhered to during the war, 
and under which the rebellion was put down^ and the integri- 
ty and rightful authority of the government maintained, in 



29 

every State, is now in the hour of victory aad upon the return 
of peace^. attempted to be set aside, and a policy of conquest 
and subgugation substituted in its stead. The law of Con- 
gress of July 4th, 1864, and the '^General Okder" No. 35^ 
promulgated in pursuance thereof ; the decision of the Su- 
preme Court, given but a short time afterward ; all while the 
war was yet flagrant, are discarded ; and a new theory enun- 
ciated, by which loyal citizens are to be deprived of the most 
sacred constitutional guaranties ; their property confiscated 
without authority of law and themselves and families reduced 
to abject poverty, for no fault of theirs, and in utter violation 
of the plighted faith of the government. It is not enough 
that they have made sacrifices and submitted to appropria- 
tions of their property to public use in a military exigency 
without compensation, waiting the return of peace, when the 
government to which they have kept allegiance could be just 
without detriment to the public safety. 

During the war, and while the government was laboring 
under financial difiiculties^ there were valid reasons for post- 
ponement and delay. But these no longer exist. If that 
were the objection now made, Mr. Segar would submit without 
complaint, notwithstanding more than ^ve years have elapsed 
since his property Avas taken for the use of the government. 
But when he is told that his right to compensation depends 
solely on the will of a conqueror, or the discretion of a Congress , 
he feels it his duty to appeal to higher authority. His claim 
rests upon pre-eminently meritorious as well as incontestibly le- 
gal grounds. Next to the gallant soldiers who endured the hard- 
ships and privations of the camp_, and bared their bosoms to the 
shock of battle, stand the claims of those who furnished sup- 
IDlies to oul troops and yielded up their property to the use of 
the government;, in a public exigency, without compensation. 
It was an easy matter for those who were realizing ready pay 
and large profits out of their sales to the government^ to be 
loyal and devoted to its support ; but history alone can do jus* 



30 

tice to th9 heroic patriotism of some of tlie iQhabitants of so 
called ^^disloyal districts/' who, at the peril of life, as well as 
the destruction of their property, maintained their allegiance 
to the Union during the darkest hours of the war. Espe- 
cially was this the case in the parts of Virginia and Tennessee, 
excepted from the proclamation of January 1st, 1863. It is 
time that these people should cease to be treated as "public 
enemies," and that private rights and constitutional guaran- 
ties should be respected in their behalf, as well as other citizens 
more fortunately situated, perhaps, but no better entitled to 
protection. 

The good faith and honor of the country demand that the 
President shall interpose to prevent this great injustice com- 
mitted in the name and under the authority of his adminis- 
tration. The Constitution has devolved upon him the high 
duty to ^'take care that the laws be faithfully executed ;" and 
to see that no dishonor stains the national escutcheon. If 
branded with Funic faith and Kepudiation, the stars that now 
shine with such lustre on the banner of the Eepubiic will pale 
before the nations ; and a stigma be cast upon our hitherto fair 
fame never to be blotted out. 

With great respect, 

R. J. ATKINSON, 

Attorney for Mr. Segar. 

To THE President. 



LIBRflRT OF CONGRESS 




013 701 849 4 



\ 



